What happens if you become mentally or physically incapacitated? Who will manage your financial affairs, including paying your bills, running your business, sign your tax return and pay your income taxes? Who will confer with your doctors on your medical care and treatment? Who will make medical decisions on your behalf when you are unable to express your wishes? These are all questions which are covered in a comprehensive, well-prepared estate plan, but what happens if incapacity strikes you before you’ve executed your estate planning documents?
Unfortunately, these are questions we often have to confront. When tragedy strikes and a person becomes incapacitated as a result of an accident, stroke, or criminal act by another person, the incapacitated person lacks the capacity to create a legal document or ability to create a valid estate plan. Therefore, the only alternative to ensure the well-being of the incapacitated person and to protect and manage the person’s finances may be to seek a conservatorship over the person and/or the person’s estate.
A conservatorship is established when a judge determines that a person (called the “conservatee”) can no longer oversee their finances or are deemed unable to take care of themselves. The judge will then appoint another person or an organization (called the “conservator”) to handle the conservatee’s care and or finances. There are two types of conservatorships: 1) of the person; and 2) of the estate.
Conservator of the Person:A conservator of the person arranges for the conservatee’s care an protection, decides where the conservatee will live, and makes decisions regarding aspects of the conservatee’s life like their healthcare, food, clothing, and recreation.
Conservatee of the Estate: A conservatee of the estate oversees and handles the conservatee’s finances. The conservator o the estate takes an inventory of the conservatee’s asset and ensures that the conservatee’s bills are paid, taxes are filed and overall ensures that the conservatee’s financial needs are met and financial records are organized. It is permissible and common that the conservator of the estate is also the same individual/organization as the conservator of the person.
Conservatorships can be limited or permanent. A temporary conservatorship may be appropriate for a limited period, usually 30 – 90 days, to handle a temporary or emergency situation. For example, an individual may develop a mental or physical condition which renders him unable to take care of himself at home. A temporary conservator may be appointed to make arrangements for caregivers, in home health care, or movement to a care facility. If the conservatee recovers sufficiently, the temporary conservatorship can be terminated or, if needed, a permanent conservator may be appointed.
It is a common misconception that the conservatee loses all rights upon the court appointment of a conservatorship. The conservatee does however retain the following rights:
The first step in establishing a conservatorship is to file a Petition for Conservatorship. A Petition for Conservatorship can be filed by a friend, relative, professional conservator, nonprofit agency, or public official. The proposed Conservator must be bondable or trustworthy. Throughout the entire process of conservatorship for an individual, the conservator needs to have an attorney represent them. The person or entity filing the petition for conservatorship must also state alternative methods for achieving the equivalent of a conservatorship and why these other methods are less appropriate or unsuitable. Alternate remedies include some sort of assistance accepted voluntarily by the individual, or other legal remedies such as limited, special, or general power of attorney, creation of a trust, or filing out an advance healthcare directive.
The second step, once the petition is filed with the court, is that the court will appoint a court investigator to interview the proposed conservatee and report the investigator’s findings to the court. The court will then set a hearing on the petition where the judge will determine whether to grant the petition for conservatorship. If a conservatorship is warranted the judge will establish the duties granted to the conservator.
If one is to become a conservator of the estate, they must file an Inventory and Appraisal within 90 days of becoming conservator and an annual accounting 1 year after becoming conservator.
A conservatorship terminates on the death of the conservatee, when a judge terminates the conservatorship because it is no longer needed, or if a judge appoints a different conservator. If the conservatorship is being terminated because of death, the conservator will pay any expenses of the conservatee’s illness and is responsible for the preservation of the conservatee’s estate until it is delivered to the personal representative of the estate or otherwise lawfully disturbed. You will need the expertise of an experienced conservatorship attorney. Rehmani & Associates hs years of experience in this practice area. Our firm has handled numerous conservator matters from Limited Conservatorships for disabled adults, to conservatorships for the elderly, to fiduciary accountings, as well as contested conservatorship matters that head to litigation. We are here to help you.